Spare Yourself the Lawsuit

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Disagreements are a part of life. Learning to disagree agreeably and remain friends is a valuable skill. Disagreements exist because you are different from the other people in your life. Your opinions are different. Your personality is different. Your background is different. Your gender is different. God made you different! These differences lead to disagreements. Since you cannot avoid disagreements, the better solution is to learn to deal with them. How do you disagree agreeably?

In the first century, the apostle Paul told the Ephesians to speak the truth in love (Ephesians 4:15). This suggestion is still good today. Unfortunately, it’s easy to blast your employer, business partner, employee, spouse or other family member with an angry comment that you think they deserve but isn’t nice. The discussion immediately ceases to be productive. On the other hand, you may err on the side of being too nice, so you tiptoe around the subject saying positive things or nothing at all but not what needs to be said because you are afraid to discuss it. Let’s take a closer look at these two bad options.

Let’s start with aggressive anger. Some people look forward to a good fight. They have had practice and they are ready for it. “You want a fight? Good. Let’s fight.” They are not afraid of a fight and may even think this is normal based on the family they grew up in. They may be truthful, but not very loving.

More people fall into the second bad option. They are afraid of controversy and tend to run away from the important, difficult conversations. They want to avoid a confrontation. This is a way of running away or escaping. They may be loving, but not truthful.

These two alternatives are famous but opposites. One is called “fight” and the other “flight.” Neither works well. As children, we tend to see only two options. As we mature, we need to consider, develop and perfect a third option: Tell the truth in love.

You must say what needs to be said but in a kind and loving way. Another way of putting Paul’s first century words into 21st Century language is that you need to be “honest but respectful.” This is how the current book Crucial Conversations puts it. You need to learn, then master, how to have productive controversial conversations. The truthful, honest thing to say is for you to state your opinion or position accurately and put it on the table for discussion even if it is controversial.

Consider two problems that could derail this conversation. First, the other party feels attacked and decides either to attack you or run away. Do not respond in kind! If they feel attacked, they will defend themselves or counter-attack and not discuss calmly. Focus on making the discussion safe for them. Don’t call them names or recount how many times they have failed in the past, or point out that they have no idea how to have a pleasant disagreement. Show respect and love for them. Deal with what they’ve said in the same manner you want them to deal with what you’ve said.

A second problem is that the goal of the conversation may not be focused enough. What benefit do you want out of this conversation and what will the other party get out of it? Are you trying to be more profitable in your business? Suggest to your business partner that you are looking for ways to be more profitable in your business and then suggest the specific idea you have that you know will be controversial. Are you trying to improve your marriage? Suggest that you want to talk about how to improve your marriage. Your spouse might be interested in that conversation but have very different suggestions on how to improve it. However, if you have a mutual goal or purpose, the discussion can be focused in a way to get both people to seek a mutually beneficial solution even if the ideas start out different. Make sure your business or marriage partner is interested in the same general goal so you can talk about it productively and the other person sees the benefit they can derive. Think about what you both are interested in on the same general subject. Come up with ideas together. Frame the question in such a way that both parties want to reach the same goal.

Mature adults need to learn to speak to each other in an honest but kind way. They need to make a safe place for the other to share. As you learn to do this, these conversations become easier and your ability to deal with controversy more successful. Put yourself in the other’s shoes so you know their interests and perspective. What motivates them? Hopefully, you act based on what is best for both of you. Ask the other person what is best and then seek a mutually beneficial solution. You can be creative together. Once the other party sees that, they can also learn to act based upon what’s best for both of you. When that happens, you create a safe place to have difficult discussions and you can disagree agreeably while working toward a solution.

A lion walks into your living room. What do you do? Do you prepare to fight it? Do you flee the scene? Do you freeze in fright? What is your reaction? If a lion bounded into your living room, your emotions would be overwhelmed. You wouldn’t be able to think clearly. You would be forced to resort to fighting, fleeing, or freezing. These are the only choices your brain would give.

Now think about the conflict you have had with your business rival, associate, or family member. How did you react then? Did you want to fight? Did you stomp out or sullenly hide behind the computer for days? Or did you freeze – your mind going blank, having no idea what to do? These are the usual human responses when dealing with a volatile or dangerous situation. But none of these responses resolve the problem – and you need a resolution.

As a professional mediator, I witness people who are in severe conflict in the middle of a lawsuit and try to help them resolve their disputes. For example, a woman has a serious illness and six months before she dies, she re-writes her will. Her children disagree as to whether the new will is valid. Everyone is highly opinionated and emotional. The oldest brother is ready to punch his younger brother. One sister can’t even come into the room and look her brother in the eye. The youngest sister keeps repeating the same thing over and over because she has no idea what to do.

Even if you can’t relate to this specific circumstance, can you relate to the extreme emotions that are present? Have you experienced situations where your emotions overwhelm your ability to think clearly? Perhaps you discover that your business rival stole information about your new product line, beat you to marketing it, and is controlling the market . . . Or you find out that your business associate is stealing from you. . . . Or you find out that your brother is trying to turn your mother against you for something you didn’t even do. What should you do when this happens to you?

These situations are extreme. Your brain will initially go into fight, fright, flight, or freeze mode. Each person has a range of emotional responses, and the more emotional you are in a given situation, the more your ability to think clearly will be impaired.

Before entering into a potentially difficult conversation with your business rival, associate, or family member, be sure that you have calmed down so that your brain can focus on resolving the conflict, not just reacting emotionally. Time may help you to do this. You also may be able to “talk yourself down” when you realize that those emotions are hurting your response. And don’t be afraid to enlist a third party to help keep emotions under control and reduce confusion. Adequate preparation will enable you to say what you need to say in a way that successfully begins addressing the problem.

Emotions are important. However, out-of-control emotions overwhelm the brain, preventing it from thinking clearly. If you have an important situation that needs resolution, make sure your brain is fully engaged to help you through those critical conversations.

Beware that you are not the attorney or party who misanalyzes the strength of your case. You might be aggressive and conclude that victory is at hand because you are determined to win rather than actually being right.

You might conclude this because of all the information that you now know assures your victory but there is needed discovery to understand the problem from the opponent’s perspective. What is the other side saying?

You might read a crucial contract provision, deed restriction, or e-mail from your perspective. Read it slower to see any ambiguities or other possibilities.

You might give greater weight to the evidence that goes your way than to opposite evidence that doesn’t. Be careful of weight given to evidence.

You have looked at this case so long, you cannot see it from the perspective of either the judge or jury because they only see a fraction of what you see. How would eyes that see this for the first time see it?

You might think that you have a statute or case that concludes the matter. There may be another statute from a different perspective. Many times cases are not completely “on point.”

Even if your case is very strong, it still might be worth settling:

You want money and a judgment for money is not the same as money.

You might really want something other than what the judge can give you and a settlement will get what a judge can’t give you—e.g. peace or a creative solution.

The cost in time and money needed to win the lawsuit might exceed the value of the victory to you.

Just because you think you will win doesn’t mean that you should always pursue trial.

When preparing for mediation, be sure to itemize your items of damage. Even assuming that the law is on your side, you still need to prove damages. Come prepared to discuss the items of damage, how they are calculated and any needed proof of causation. In an accounting, the numbers should be prepared in advance so that the parties can discuss them intelligently during the mediation. The brief should itemize these damages. Sometimes, parties are not prepared and the mediation will rarely be successful until the numbers are disclosed with backup information. The defense is usually adroit at seeing the weakness in the damage calculation. If you want your mediation to be successful, come prepared for a discussion of damage items, their calculation and the causation for them.